A reader, who is one of several siblings, says her mother has told her she wants to donate the backyard portion of her property to her.
Now the reader wants to know what documents she needs to avoid any arguments.
She asks whether a letter signed by her mother and witnessed independently would suffice as proof of the intended transfer.
See the reader’s question here.
Reading between the lines, it appears that the intention is for the backyard to be separated from the main property and for ownership of that portion to be transferred to the reader.
It seems her mother intends to donate the property to her but there is no indication of whether the property is urban or rural. This could affect the manner in which subdivision can be executed, if it is at all possible.
If the property is rural, the Subdivision of Agricultural Land Act is applicable.
Depending on the circumstances, such a subdivision may not be permitted in accordance with this legislation. One of the aims of the legislation is to limit the subdivision of land to a point where it is not commercially viable.
However, it seems more likely that the property is urban.
Legislation will again apply to the manner in which one may subdivide an urban property. This is published by the local authority in accordance with the provisions of the Spatial Planning Land Use Management Act.
An application to subdivide should be supported by a number of documents, reports and consents, which must be submitted to the local authority to begin the process.
There is no indication of the intended use of the backyard. The reader may wish to build on the land or merely have access to it, although it is suspected that it is the former.
An intention to build and reside there could complicate matters.
There could also be negative legal consequences if the reader takes an informal approach and carries out any unauthorised plans.
If the intention of the signed and witnessed letter is to serve as the underlying document for transferring ownership of the land, the requirements of the Alienation of Land Act should be considered.
No alienation of land shall, subject to certain provisions, be of any effect unless it is contained in a deed of alienation signed by the parties or by their agents acting on their written authority.
It also appears that the intention is for the piece of land to be transferred formally only on the death of the reader’s mother. A bequest in the mother’s will could perhaps address the matter to some degree.
She could express an intention that the backyard portion of the property be bequeathed to the daughter, giving the executor authority to take steps to see to the subdivision.
She could also look for an alternative if subdivision is not possible.
A portion of the property could perhaps be leased to the daughter or, depending on the intended use, a usufruct could be granted in her favour.
Because of the possibility of a contentious situation arising in the family, and not to fall foul of the technicalities applicable to property-type matters, the reader should take formal advice.
Further communication about the specific use of the property could make the solution more obvious.
Ask the YourProperty experts a question here.